Will “Right-to-Lifers” Gain Right to Lie?

In a 9-0 ruling Monday, the U.S. Supreme Court granted two anti-choice groups the right to challenge the constitutionality of Ohio’s ban on false statements made during political campaigns.

The suit draws from a controversy that arose during former U.S. Rep. Steve Driehaus’, D-Ohio, reelection bid in 2010. At the time of his campaign, the Susan B. Anthony List began propagating advertisements claiming that Driehaus supported “taxpayer funded abortion” because he voted in favor of the Affordable Care Act.

Driehaus responded by filing a complaint with the Ohio Elections Commission, alleging the SBA List’s advertisements were in violation of an Ohio law banning false claims in campaign materials. The commission held an initial hearing and determined it was likely enough that the SBA List violated the law to hold an official hearing. However, after losing his reelection contest, Driehaus dropped his suit prior to the final hearing. Subsequently, the commission did not pursue the case.

However, the SBA List filed a suit in federal court alleging that their First Amendment rights were violated by Ohio’s campaign law. The U.S. Court of Appeals for the Sixth Circuit combined SBA List’s suit with that of the Coalition Opposed to Additional Spending and Taxes, which made similar accusations.

The Court of Appeals dismissed the suit on the grounds that the two organizations did not face “an imminent threat of prosecution,” nor did it appear the Ohio ban would prevent them from propagating their message. The ruling reads:

SBA List’s president said that even if the Commission prevented SBA List from putting up its billboards, “we will double down and make sure that our message floods his district. We’ve got radio ads going out all across his district. We will simply not be intimidated into silence.”‘ This is not the sound of chilled speech or a silenced speaker. “SBA List clearly has not been enjoined from any speech, and all indications are that its speech continues to be robust.”

Indeed, despite claims of “chilled speech,” SBA List announced in April their plans to publicly attack Sens. Kay Hagan, D-N.C., Mary Landrieu, D-La., and Mark Pryor, D-Ark., for their support of the ACA.

However, the Supreme Court’s decision on Monday reversed the lower court’s ruling, arguing that the SBA List faced adequate “threat of enforcement” under the Ohio ban to pursue their case in federal court. The latest ruling was based partially on the Ohio Election Commission’s initial findings that there was “probable cause to believe that SBA’s speech violated the false statement statute.” The Supreme Court argued that the Election Commission’s finding of “probable cause” would likely mean SBA List would be prosecuted for future publicity campaigns similar to that against Driehaus. As the Court has ruled in past cases, a group that has been threatened with prosecution but has not yet faced legal punishment is still eligible to file a suit in federal courts.

SBA List and COAST now may challenge the constitutionality of Ohio’s campaign laws in court—a challenge that, essentially, asks for permission to lie. The suggestion that the Affordable Care Act funds abortions ignores the Hyde Amendment’s prohibition of federal funding for abortions (except when the pregnancy results from rape or incest or when it threatens the mother’s life). The ACA upholds this amendment by only subsidizing coverage of abortions in cases of rape, incest or endangerment to the mother’s life. Coverage for all other abortions must be funded by individual state exchanges and those who purchase a state health care plan. Even then, each state has the right to determine whether or not their exchanges will cover abortions sought for any reason.

As Jessica Mason Pieklo of RH Reality Checkargues, the SBA List’s suit follows a host of other anti-choice litigation seeking protection under the First Amendment for false statements, even if such propaganda perpetuates harmful and untrue notions. In one example, the anti-choice advocates behind McCullen v. Coakleyargued against the constitutionality of buffer zones around abortion clinics. Those against the buffer zones have portrayed anti-choice activists as gentle grandmothers wishing to uphold their rights to free speech. But such a statement ignores the often disruptive and threatening nature of their protests. Just as with the SBA List, the plaintiffs in McCullen v. Coakley have “claimed in some way that the actual facts of a particular issue don’t matter as much as their reasonable belief of those facts do.”

More generally, anti-choice activists have said time and again that they believe their targeted regulation of abortion clinics (TRAP laws) benefits the health of women across the nation. However, their beliefs run up against statements and evidence from researchers, gynecologists and other women’s health specialists that abortion is already safe and that, by regulating abortion, women are often forced to wait longer to receive treatment and thus face a greater chance of experiencing complications.

The Supreme Court has ruled in the past that the First Amendment does protect untruthful statements. In United States v. Alvarez, the court ruled it was unconstitutional to criminalize false claims about receiving military honor.

Given previous rulings, Erwin Chemerinsky, dean of the School of Law at the University of California, Irvine, told Ms. in an emailthat he believes it’s unlikely the federal courts will “uphold laws that punish speech in election campaigns, even false speech.” If this is the case, we might be seeing significantly more false propaganda coming from the SBA List and like-minded organizations. The best course of action for women’s health advocates will be to practice their own rights to freedom of speech and be very vocal about the inaccuracies perpetuated by anti-choice groups.

Photo of the advertisement designed by the Susan B. Anthony List that is currently at the center of a court debate, courtesy of Cincinnat!.com.

Comments

The Alvarez case was joined by all the Democratic Judges and Kennedy and Roberts. I think that shows strong support the First Amendment protects lies. I have to disagree also with the idea that they are “asking for permission to lie.” I think the question is whether a State can prohibit lies. With that, I think we would all say that a State cannot civil punish or criminalize lying in general. That would be insane. So, the way to uphold this law would be to say that lying in the context of elections is somehow constitutionally different. I have to think that elections are not constitutionally different.

I will say what I think would be most interesting is if the Court takes the case how the vote goes, especially after reading article that says each justice tends to vote in favor of the speaker they like. Liberal justices struck down criminalizing lying when it was a criminal defendant while three conservatives were not sympathetic. Conservatives tend to support Free Speech in elections more so than liberal justices (Citizens United, McCutcheson, etc.). I wonder if in this case the true personal and political views of the justices will appear. Will liberal justices who vehemently struck down lying statute in Alvarez somehow vote to uphold Ohio law? Will conservative justices who would not help the criminal defendant in Alvarez now find First Amendment protects lying in elections.

I strongly believe in First Amendment have to say I think the law should be struck down. We will just have to wait and see